Implementation of the right to conscientious objection - experiences of WRI

Andreas Speck, War Resisters' International

Presentation in Seoul, 21 March 2012

In 2004, both, the Supreme Court and the Constitutional Court denied that conscientious objection is a human right, protected under the Korean constitution. Although the National Human Rights Commission later recommended the recognition of the right to conscientious objection, this did not lead to a legal change. The election of President Lee Myung-bak put an end to all hopes for legislative change.

The legal strategy went on to use international fora, with great success. The 2007 decision of the UN Human Rights Committee was a landmark decision, not only for South Korea, but for human rights globally. In this decision, for the first time, the Human Rights Committee explicitely recognised conscientious objection to military service as a manifestation of religion or belief, and as such as protected under article 18 of the International Covenant on Civil and Political Rights.

The decisions from 2010 and 2011 strengthened this position – the 2011 decision going even further, and stating that the right to conscientious objection is inherent to the right to freedom of conscience – and not only a manifestation of it.

When the Constitutional Court had to decide on the question again in 2011, hopes were high – I myself thought that this time the Constitutional Court would have no other option than to recognise the right to conscientious objection, given that the UN General Secretary is Korean, and the respect that the UN has in South Korea. But we all were disappointed. The Constitutional Court did not shift its position, and so the legal path does now seem to be in a dead end road.

For the conscientious objection movement there is therefore a need to explore other options to achieve the recognition of the right to conscientious objection. These might range from political lobbying to provocative nonviolent direct action, or non-cooperation with military authorities. I do not have the answers what conscientious objectors should do now, but in this presentation I want to give some pointers based on WRI's experience.

When we talk about conscientious objection, we should be aware that we are activing in a field of tension between two approaches: the antimilitarist approach, which has as its aim the demilitarisation of society, based on a social and collective perspective, and the human rights approach, which has as its objective freedom of conscience as an individual human right – necessarily a very individualist perspective.

The legal strategy, which is presently stuck, aim to achieve freedom of conscience for the individual, and does not include the perspective of social demilitarisation. Freedom of conscience means the individual right to be exempted if someone has a “problem” of conscience to perform military service – a conscientious objection. This perspective has no problems with military service per se, with conscription, or with the existence of Armed Forces – it only wants to protect the conscience of individuals.

For War Resisters' International conscientious objection means something different. We understand conscientious objection as a tool in our antimilitarist struggle, with the aim of demilitarisation and the abolition of conscription – initially – and ultimately the total abilition of Armed Forces. For us, conscientious objection – be it legal or not – is not a limited right, nor an exceptional individual right, but a collective approach, a social movement, an expression of antimilitarism and nonviolence.

For the conscientious objection movement the biggest challenge is to maintain an equilibrium between the two perspectives, as is shown in the image. If we imagine the antimilitarist perspective on the horizontal axis, and the perspective of freedom of conscience on the vertical axis, then – as a movement – we should trive to combine these two approaches on a diagonal axis. In practice, there will be times when one of the two perspectives is more dominant than the other. In the long term, however, it is important that both are present and are given equal importance and strength.

There is no doubt any more that conscientious objection is today recognised as a human right in international law. The UN Human Rights Committee did this explicitly in its decision on cases from South Korea, and in July 2011 also the European Court of Human Rights explicitly recognised the right to conscientious objection in its judgment on the case of Bayatyan v Armenia, and has since done so in four more judgements.

I do not want to go into the details of these judgements and decisions here, nor into the details of the international standards. But one point, which often leads to confusion, needs to be clarified:

The right to freedom of conscience includes the right to conscientious objection. This is a right to be exempted from any kind of military service – which any state that is partry to the International Covenant on Civil and Political Rights has an obligation to recognise.

There is no obligation on any state to introduce a substitute service for those exempted from military service. Indeed, for more than a decade, Paraguay did simply exempt conscientious objectors from military service, without any obligation to perform substitute service.

Unfortunately, states are permitted to impose a substitute service on conscientious objectors as an alternative duty. This has been the practice in most countries that recognise the right to conscientious objection, which is why the two – the right to CO and the duty to perform a substitute service – are often confused. To make it very clear: there is no right to substitute service in international law!

If a state chooses to impose a substitute service on conscientious objectors, there are certain standards that need to be respected. It has to be genuinely civilian, and non-punitive in character and length. However, in reality any substitute service means an obligation which is a consequence of the conscription system, of obligatory military service. In all those countries that recognise the right to conscientious objection, performing substitute service is one way to comply with ones conscription duties. Consequently, to perform substitute service means de-facto a recognition of the right of the state to conscript its citizens, it means a cooperation with the system of recruitment for obligatory military service.

I myself opted for total objection when faced with conscription. This means the refusal of cooperation with the military recruitment authorities, and the refusal of any service which follows from conscription – be it military or civilian.

Although we have the international standards in relation to conscientious objection, in practice these standards are often not implemented, even in countries that recognise conscientious objection in principle. The table shows the compliance with some of the standards in some European countries – it is not an overview of all countries that recognise conscientious objection.

I don't want to go into all the details here – I just want to highlight some of the most common violations of the international standards:

- The limitation of the right to conscientious objection: for example the exclusion of certain groups of people, such as people with a criminal record, or who have a weapons licence, etc. In some cases the right to conscientious objection is limited to person wo have religious reasons.
- Time limits on when conscientious objection is possible. In the majority of countries, an application for conscientious objection is only possible before or after military service, and often only until a certain time before call-up.
- Lack of impartiality in decision making about conscientious objection. In many countries, a commission set up by the Ministry of Defence decides on applications, or even the Armed Forces themselves.
- The implementation and lenght of a substitute service. In many cases, the civilian character of the substitute service is doubtful, because the Ministry of Defence is somehow involved in it. And in even more cases the substitute service is longer than the military services, which means it is punitive in length.

When it comes to lobbying the government to legislate for conscientious objection – something which might again be on the agenda after the elections – it might be a good idea to consider which department of the government should be in charge of drafting such a legislation, and of implementing it. Just because military service is the domain of the Ministry of Defence this doesn't have to be the case for conscientious objection to military service. In fact, as the above list shows, in many countries it is not the Ministry of Defence.

One observation is that whenever the Ministry of Defence is in charge of legislating for conscientious objection, there are more issues of non-compliance with international standards – the military logic of punishing conscientious objectors prevails. In these cases, the regulations for conscientious objection are often part of the military service law – not a good place for them to be.
In cases where another, clearly civilian ministry takes the lead and responsibility for legislating the right to conscientious objection, compliance with international standards is usually better.

For me, this is an important point: when we discuss about a law on conscientious objection, it is important to also discuss about who is in charge of this law. I think the experience from other countries shows very clearly: for us it is much better when a clearly civlian ministry takes the lead in drafting and implementing legislation, and presents the draft first to the cabinet and then to parliament, and not the Ministry of Defence. Also, I think, the experience of other countries shows that it is better to legislate for conscientious objection in a special law, and not to include it in the law on military service.

So far I have focused a lot on the legal aspects of conscientious objection, but conscientious objection is more. As mentioned earlier, it is important for any conscientious objection movement to find the right balance between a human rights approach and antimilitarism.

For me, conscientious objection goes well beyond military service. It logically leads to a rejection of all things military, of the underlying values of militarism, and when we start to look at militarism, we see the close links with nationalism, patriarchy, and obedience to authority.

As an antimilitarist, I do not only reject military service and the existence of the military. No, as an antimilitarist I also reject the idea that obedience is a positive value – in fact, obedience to authority is what made Auschwitz or Hiroshima possible, and as antimilitarists we need to engage in the search for new forms of democracy, based on respect for each individual and not on majority rule, but on consensus decision making.

The links between militarism, nationalism, and masculinity are obvious. Who hasn't heard that to become a real man you need to do your military service? But this is only the most obvious part of it – militarism has a deep impact on how society sees gender and sexual identities, pushing us into heteronormativity and compliance with binary gender roles – the “strong” masculine man and the weak, to be protected and submissive woman.

As a queer antimilitarist, my conscientious objection to military service also includes a rejection of heteronormativity, of partriarchy, of gender binaries.

Experience shows that conscientious objection as a movement becomes relevant when it is about more than just conscientious objection, and gets involved in broader issues of war and peace, or resisting militarism. Examples are plentiful.

The South African End Conscription Campaign (ECC) under apartheid South Africa became highly relevant, because it organised white youth against their participation in maintaining apartheid, and saw itself as an integral part of the anti apartheid movement. Many of its members went to prison for refusing military service, and the ECC was eventually banned, which did not stop it from having a huge impact.

If we look at the history of the German conscientious objection and peace movements, we see that conscientious objection grew massively in the early 1980s, at the time we had a strong peace movement against new US nuclear missiles in Germany and other European countries. Conscientious objection was part of that movement, as was nonviolent action (such as blockades of the missile bases).

Here in South Korea, we just now are witnessing an important nonviolent and antimilitarist struggle – the struggle of Gangjeong village on Jeju Island against the construction of a new navy base. Angie Zelter, a friend of mine, has just recently been deported from Jeju Island for her support to the struggle over there, and hundreds of people have been arrested.

Resisting militarism takes many forms, and to me, only as part of this resistance to militarism does conscientious objection become meaningful.